There’s only one thing I like almost as much as practicing law, and that’s baseball. Like Al Capone, it’s one of my enthusiasms.
You might not share my enthusiasm, however, and if you don’t then you may have missed last night’s big story: The Detroit Tigers’ pitcher Armando Galarraga lost a perfect game (27 outs in a row) when, on the 27th batter, umpire James Joyce blew a call, calling a runner safe at first whom the replay shows was clearly out.
So why post this here? Well, lately it’s become fashionable for Republicans, and the judges they appoint, to compare judges to umpires: neutral callers of balls and strikes. The implication is that judges should not bring their personalities and experience with them to the bench; there is no place in judging for the empathy that President Obama lauded in Justice Sotomayor, any more than there is a place for it in calling a bang-bang play at first. Judging, like umpiring, requires only the application of established rules to a stream of unique events. — each pitch is different, but the strike zone remains the same.
Jonathan Chait at tnr.com posted an item on the blown Galarraga call. Here’s what one of his commentors, rayward, had to say about umpires’ neutral objectivity, and judges’ by implication as well. I think it’s pretty astute.
Like the batter who decides to swing (or not) before the pitch is thrown, Joyce had made the decision to call the runner safe before the runner had hit the ball. For those who spend lots of time watching and coaching baseball (as I do), this is a common experience. The mind takes over for the eyes and “sees” what the mind believes it will see. For those who believe judges are mere impartial umpires who observe the facts and apply the law to the facts, watch that play at first base and then consider whether judges have already “seen” the facts and applied the law before reading the briefs and listening to the oral argument.
Also, in the same vein, Justice Souter gave a commencement address at Harvard last week that comprehensively rebutted the umpire-like “original intent” jurisprudence now espoused by the Scalia-Roberts wing of the Supreme Court. The entire address is here, or you can read E.J Dionne’s summary here.